In re Board of Foreign Missions — 33 N.Y. St. Rep. 789

Majority

p. 789

In the Matter of the Application of The Board of Foreign Missions, under the Will of Henrietta A. Lenox, Deceased.

(Supreme Court, General Term, First Department,

Filed October 24, 1890.)

Headnote

Collateral inheritance tax—Exemption—Board oe foreign missions.

The board of foreign missions is not exempt from taxation either under its charter or the provisions of the Revised Statutes, and hence a legacy to it is liable to the collateral inheritance tax.

Appeal by the people and the comptroller of the city and county of New York from an order of the surrogate of the same county, directing the executors of the estate of Henrietta A. Lenox to pay the sum of $2,500 to the board of foreign missions.

Benj. F. Dos Passos, for appl’ts; Hamilton Odell, for ex’rs.

The testatrix, by her will, which has been duly admitted to probate, bequeathed the sum of $50,000 to the board of foreign missions, the petitioner in this proceeding. The sum of $47,500 of the legacy has been paid to the board, but the residue was withheld under the authority of chapter 483 of the Laws of 1885, for the payment of the collateral inheritance tax. The board considered that to be unauthorized, and petitioned the surrogate to direct the payment to it of this residue. And on the hearing of the petition an order was made directing that payment. And it is from that order that the appeal has been brought. And it rests wholly upon the question whether the legacy was liable to the payment of this tax.

The first section of the act has exempted certain devises and bequests from the payment of the collateral inheritance tax made payable by its provisions. Among these are, “The societies, corporations and. institutions now exempted by law from taxation.” And if the petitioner was not exempt from taxation, then its legacy was liable to pay this tax, and the order of the surro

p. 790

gate directing the payment of the amount to the board was made without authority.

The board was incorporated by chap. 187 of the Laws of 1862. But this act did not exempt it from taxation. And its claim to such exemption must depend upon the general statutes of the state. The exemptions which have been thereby declared are contained in vol. 1 of tlie Bevised Statutes, 6th ed., 932, §§ 5-16. Those relating to colleges, seminaries of learning, and religious organizations, are contained in subd. 3 of § 5 as that has been amended by chap. 397 of the Laws of 1883. But this subdivision as it has been amended does not include the case of the petitioner. It is expressly restricted to the creation of other and different exemptions ; nor is the petitioner exempt from taxation under subd. 7 of that section, exempting corporations not made liable to taxation on their capital by the fourth title of the same chapter. That subdivision was considered and construed in the case of Catlin v. Trustees, etc., 113 N. Y., 133 ; 22 N. Y. State Rep., 189. And the construction then given to it limited it to certain business and stock corporations, excluding all those of the description of the petitioner. Under neither of these provisions has this board been exempted from taxation. And no other has been made by which exemption from taxation has been secured to it. Consequently it must follow, from the general provision declaring all lands and personal estate liable to taxation which have not been afterwards exempted, 1 R. S., 6th ed., 931, § 1, that this legacy was liable to the collateral tax mentioned in the first section of the act of 1885.

. The order should, therefore, he reversed, with ten dollars costs and the disbursements.

Yan Brunt, P. J., and Beady, J-., concur.